Not as Easy as 1, 2, 3

Submitted by David Moltz on May 3, 2011 - 3:00am

BETHESDA, Md. — College and university officials gathered here Monday at the National Collegiate Athletic Association’s annual Gender Equity Forum[1] to learn how to count — varsity athletes, that is. They sought guidance from a pair of lawyers about a topic that seems like it should be straightforward: how to calculate the number of players on their teams for the purpose of complying with Title IX of the Education Amendments of 1972.

Though often contentious, counting athletes to comply with the federal law's requirement that institutions offer equitable athletics opportunities to male and female students used to be a relatively easy process; sometimes checking off names on an institution’s official team rosters was sufficient. But, in the past year, a high-profile court decision[2] involving Quinnipiac University and recent news media coverage of colleges' manipulating their team rosters to skirt the rules' requirements appear to have complicated the matter. (Indeed, last week’s series[3] in The New York Times detailing how some institutions have used their own fuzzy math to appear within acceptable limits was much discussed here.)

But if attendees were seeking hard and fast rules to follow, the session’s presenters — Erin Buzuvis, law professor at Western New England College and a lead contributor to Title IX Blog,[4] and Tom O’Brien, a lawyerspecializing in Title IX — didn’t offer many. Instead, Buzuvis implored the audience to use the findings in the recent case against Quinnipiac as a “cautionary tale” of what not to do.

Last year, a federal judge blocked Quinnipiac from cutting its women’s volleyball team after he concluded that doing so would bring the institution out of compliance with Title IX. There are three ways of complying with the law — offering athletic opportunities for men and women in numbers “substantially proportionate” to their respective enrollments, showing a “history and continuing practice of program expansion” that responds to the interests of the underrepresented sex, or demonstrating that an institution’s existing athletic offerings accommodate the “interest and abilities” of the underrepresented sex.

Because it had cut a viable team, Buzuvis explained, Quinnipiac relinquished its ability to comply with the law using either the second or third tests. And the court took issue with how the institution counted its athletes to show that it met the proportionality test. Dependence on this method of complying with the law makes counting crucial because institutions (particularly those with football teams) often find themselves in the position of having many more male athletes than female ones, which as theTimes series revealed can pressure some institutions to make female athletics participation numbers look higher and male athletic participation rates lower.

The judge's findings on who at Quinnipiac counts as an athlete and who doesn’t — and how to determine this — have implications for all institutions sponsoring athletics, Buzuvis and O’Brien argued.

O’Brien noted that double- and triple-counting athletes is still an acceptable practice when those athletes are fully participating in multiple sports. (This has been the case since a 1996 clarification by the Education Department’s Office for Civil Rights.) But, he added, the Quinnipiac decision added a slight wrinkle, or an additional barrier, to this type of counting. The judge noted that athletes may be counted multiple times only if they have a “genuine athletic participation opportunity” in each sport. He defined the opposite of this "genuine opportunity" as one in which the athlete has “no hope of competing or otherwise participating meaningfully” in the season.

Quinnipiac failed to meet this test in the judge's eyes, Buzuvis said, because it required cross-country athletes to participate on either the indoor or outdoor track teams — yet gave those teams no chance to win championships because they included no athletes in the "field" events. The university also counted 11 injured cross county runners as members of the track teams, though they competed in no events. The judge ruled, therefore, that Quinnipiac had inflated its count of female athletes by counting the female track runners two or even three times, Buzuvis said, when their participation was essentially "a glorified nontraditional season for cross-country athletes."

“Though counting multiple sport athletes continues to be permissible … the Quinnipiac case gives you a warning,” said O’Brien, suggesting that institutions should “review the role and experience of multi-sport athletes” to determine if they meet this new standard.

The judge in the Quinnipiac case found that the university had boosted the number of players on rosters of women's teams and trimmed the men's team's rosters before the first day of practice, and found the practice suspicious enough to at least give it the appearance of "roster manipulation." This is what, specifically, led to the temporary reinstatement of the volleyball team. To make sure that similar problems don't arise at other institutions, O’Brien suggested that institutions review rosters before, on and after the first day of competition — the date at which formal participation numbers are submitted to the government — making sure to document why there were additions or deletions surrounding this date.

Finally, both Buzuvis and O’Brien repeatedly emphasized that the way in which institutions are allowed to count athletes for the Equity in Athletics Disclosure Act[5] differs somewhat to the way in which the Office for Civil Rights counts athletes to determine an institution’s Title IX compliance. For instance, O’Brien noted that institutions may consider men participating on a women’s practice team as “women’s athletes” in EADA counting. (This practice was highlighted in last week’s New York Timesseries[3].) This is never acceptable, he clarified, in counting for Title IX purposes.

At session’s end, attendees had more questions for the presenters than the presenters had answers. O’Brien told Inside Higher Ed after his presentation that the Quinnipiac case had substantively changed the way he advises institutions to count athletes, noting that more energy has to be put into determining whether, for example, athletes should be counted more than once.

There are a number of cases currently under way — including one against Delaware State University[6], which cut a women’s equestrian team last year — that will further shape this topic and are likely to follow some of the logic laid out in the Quinnipiac case.